Democrats don't get support for Alito filibuster / Just 25 votes of 41 needed means conservative is headed to Supreme Court

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2006-01-30 04:00:00 PDT Washington -- Senate Democrats led by the party's former presidential nominee John Kerry failed as expected Monday to block Judge Samuel Alito's nomination to the Supreme Court, exposing deep divisions within their party and prompting warnings from Republicans that the maneuver would come back to haunt a Democratic president.

Democrats secured just 25 votes for the filibuster, far short of the 41 they needed to block the nomination as demanded by liberal interest groups who warn that Alito threatens abortion and civil rights. Many moderate Democrats -- including those who intend to vote Tuesday against Alito -- refused to support the move to stall the nomination by continuing debate.

Alito, 55, a self-described conservative, former Reagan administration lawyer and for the last 15 years a judge on the federal appeals court in Philadelphia, is expected be confirmed on a closer party-line vote Tuesday to replace retiring centrist Justice Sandra Day O'Connor. O'Connor, appointed in 1981 by President Ronald Reagan as the first woman to the court, has been a key vote in close majority decisions on issues such as abortion rights and affirmative action.

Kerry announced last week from the Swiss alpine ski resort of Davos -- where he was attending a conference -- that he would lead a filibuster. The move angered many of his Democratic colleagues and delighted some Republicans who coined the phrase, "Davos Democrats," to mock wealthy liberals.

California's Democratic senators, Dianne Feinstein and Barbara Boxer, were among the party's 24 senators who voted Monday to sustain the filibuster. Independent Sen. Jim Jeffords of Vermont also voted to continue debate.

Nineteen Democrats voted to end the filibuster joining all 53 Republicans who attended Monday's session.

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Kerry's move to force a filibuster vote heightened the scrutiny from activists on a handful of moderates of both parties, including Feinstein, who already had announced her opposition to Alito.

Republicans accused Feinstein of a filibuster flip flop.

Two weeks ago Feinstein seemed to rule out a filibuster of Alito on a Sunday talk show, saying, "I don't see those kinds of egregious things emerging that would justify a filibuster. I think when it comes to filibustering a Supreme Court appointment, you really have to have something out there whether it's gross moral turpitude or something that comes to the surface. Now I mean, this is a man I might disagree with. That doesn't mean he shouldn't be on the court."

But Feinstein spokesman Howard Gantman said the senator's statements never ruled out support for a filibuster.

"Sen. Feinstein has carefully over the last couple of weeks been going through the transcript, she's been carefully going through (Alito's) lack of responsiveness to a number of questions on very serious issues facing our nation," Gantman said. "She went back through his earlier writings, through his court cases, and Sen. Feinstein reached the point where she felt she could not support ending debate on this."

Boxer, for her part, just published a novel, "A Time to Run," about an idealistic California senator who blocked a Republican Supreme Court nominee.

But several veteran Senate Republicans warned the rare filibuster of a Supreme Court nominee -- which they said had never before been used against a nominee supported by a Senate majority -- set a dangerous precedent.

"We will mourn the day this tactic became the norm," said Sen. Mitch McConnell, R-Ky., who said judicial nominations had come to resemble political campaigns.

An angry Sen. Pete Domenici, R-N.M., said the confirmation process had become "filled with almost hatred, almost a fire and brimstone ... this is a dangerous course and I hope and pray this will be the last one, but I doubt it."

Senate Democratic leader Harry Reid of Nevada -- who voted to sustain the filibuster but had disagreed with Kerry's decision to use it -- said the problem was President Bush's failure to consult with Democrats.

Bush actually consulted with Reid on O'Connor's successor, heeding Reid's recommendation of White House counsel Harriett Miers. But Miers' nomination was soon withdrawn under fire from conservatives who suspected her ideology and qualifications.

Reid called Miers "a good woman treated so poorly -- and the people who destroyed her are being rewarded by the Alito nomination."

Kerry's move to filibuster while attending the Davos world economic forum last week took Democratic leaders by surprise. Conservatives made hay with Kerry's choice of the intellectual retreat for his filibuster, with the Wall Street Journal's Opinion Journal Web page headlining an entry, "Mr. Swiss Goes to Washington."

Kerry announced his filibuster on the liberal blog Daily Kos, and after returning to the Senate Friday he said he was taking a stand on principle. "This is not the vote of Monday afternoon," he said. "This is a vote of history."

Democrats who had been leading the fight against Bush's judicial nominees had decided not to use the tactic against Alito because they lacked the 41 votes needed to sustain it.

Seven Democrats who were part of a bipartisan group labeled the "Gang of 14" had indicated Alito's nomination didn't meet the "extraordinary circumstances" that could trigger a filibuster.

Besides being a hopeless cause, Senate Democrats and consultants worried a filibuster would put Democrats in Republican-leaning states in a bind during a mid-term election year when they have a chance to retake their Senate majority. Kerry's filibuster robbed these "red state Democrats" of anywhere to hide, forcing them to cast two conflicting votes -- one pro-Alito vote today to end the filibuster, and another Tuesday against Alito's actual confirmation.

One of those Democrats up for re-election this year is Sen. Bill Nelson of Florida, who voted to end the filibuster, but said he would vote against Alito.

Other Democratic senators from Bush-leaning states who voted to cut off debate and said they'll oppose Alito on Tuesday were Ken Salazar of Colorado, Max Baucus of Montana and Jeff Bingaman of New Mexico.

Three Senate Democrats on the ballot this year, Kent Conrad of North Dakota, Robert Byrd of West Virginia and Ben Nelson of Nebraska, voted to cut off debate and have announced their support for Alito. Democratic Sen Tim Johnson of South Dakota, who does not face re-election but hails from a state where Republican John Thune campaigned on judicial nominations to unseat former Democratic leader Tom Daschle, also voted to cut off debate and announced his backing of Alito.

"You've got some senators -- who are senators now -- who are in tough re-election fights and it doesn't help them to make this vote either way," said a Senate Democratic aide who asked not to be identified.

Plus, he said, "It doesn't look good to push a filibuster and lose. You want to save it for the next time when you might be able to win it."